Elddin v Hamed [2014] NSWSC 1311

Supreme Court New South Wales

Medium Neutral Citation: Elddin v Hamed [2014] NSWSC 1311 Hearing dates: 22 September 2014 Decision date: 24 September 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Consent orders made in terms agreed by the parties. Catchwords: PROCEDURE - notice of motion - orders seeking expedited hearing - orders not opposed - orders made Category: Procedural and other rulings Parties: Mustafa Kamar Elddin (Plaintiff) Mohamed Hamed (First Defendant) Rina Hamed (Second Defendant) Representation: Counsel: Mr CP O'Neil Solicitors: Thurlow Fisher Lawyers (Plaintiff) Farah Lawyers (Defendants) File Number(s): 2014/175205 Publication restriction: None

Judgment 1These proceedings were commenced in June 2014. Mr Elddin, the registered proprietor of a property located at Guildford, seeks possession of that property from Mr Hamed, the former registered proprietor, and his wife. There is no issue that Mr and Mrs Hamed remain in occupation of the property. Mr Hamed claims that a constructive trust has arisen under the terms of an agreement which the parties entered with each other, which permits his continued occupation of the property. 2Mr Elddin had earlier sought relief in the NSW Civil and Administrative Tribunal and later commenced these proceedings, given a question as to that Tribunal's jurisdiction to deal with his claim for possession. 3By motion filed on 11 September, Mr Elddin sought an order for expedition, which was not opposed. The application was supported by affidavits sworn by Mr Elddin and his wife, in which they deposed to the circumstances in which Mr and Mrs Hamed came to remain in possession of the property; the hardship caused by Mr and Mrs Hamed's refusal to give them possession; and their resulting difficult financial and personal circumstances. They have five children under the age of 5 years with whom they are now living in cramped conditions in a two bedroom granny flat. This has caused a variety of difficulties, which Mrs Elddin described, including one child having fallen out of bed and broken his shoulder, from a bed which he shares with two of his siblings. 4These accounts were not challenged and I was satisfied that they provided a proper basis for the grant of the expedition sought. Consent orders were accordingly made in terms agreed by the parties. The matter has been adjourned to a date to be fixed, after 23 October 2014. The parties will shortly be notified of that date and should in the meantime diligently pursue their discussions as to the settlement of their dispute. 5In the meantime the parties have liberty to approach on short notice.